93 Decision Citation: BVA 93-04849
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-56 121 ) DATE
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THE ISSUE
Entitlement to a compensable evaluation for non-Hodgkin's
lymphoma.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. L. Schwartz, Associate Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of April 16, 1991,
from the San Francisco, regional office (RO). The veteran
was afforded a personal hearing at the RO on June 27, 1991,
at which time his testimony was accepted as his notice of
disagreement. The hearing officer rendered a decision on
October 24, 1991. The statement of the case was issued on
November 14, 1991. The substantive appeal was received on
January 13, 1992. The appeal was received at the Board on
February 10, 1992, and docketed on February 13, 1992. The
appellant is represented by the Disabled American Veterans,
to which the file was referred. That organization prepared
additional written argument for the Board on October 23,
1992.
The veteran had active military service from August 1966 to
November 1967, and from November 1967 to September 1969.
In his testimony, the veteran stated that due to the very
poor prognosis of his service-connected illness, he has
suffered a psychological reaction which has substantially
interfered with his employment. We interpret this statement
as a claim for service connection on a secondary basis for a
psychiatric disability. This matter has not been addressed
by the RO, and it is hereby referred to that office for
appropriate action.
This case is now ready for final appellate consideration.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the serious nature of his
service-connected illness warrants a compensable
evaluation. He argues that the type of non-Hodgkin's
lymphoma with which he is afflicted has an extremely poor
prognosis, and that a compensable evaluation should be
awarded in recognition of this. He also notes occasional
fatigue when he fails to maintain his fitness program, which
he contends could be symptomatic of his service-connected
disorder.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims
file, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
is against the veteran's claim in this matter.
FINDINGS OF FACT
1. The veteran has presented a well-grounded claim, and all
evidence necessary for an equitable determination has been
obtained and placed into evidence by the RO.
2. The veteran does not have fever, anemia, fatigability
(due to the lymphoma), or pruritus; he continues to do well
and remains asymptomatic of his disease.
CONCLUSION OF LAW
The schedular criteria for an increased (compensable) rating
for non-Hodgkin's lymphoma have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. § 4.10, 4.31, Part 4,
Codes 7715, 7709.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran has presented a well-grounded claim within the
meaning of 38 U.S.C.A. § 5107(a)(West 1991). That is, his
claim is plausible. We also find that the Department of
Veterans Affairs (VA) has discharged its duty to the veteran
to assist him in developing evidence supportive of his
claim. The current record is devoid of any indication that
there are outstanding treatment records which might reveal a
disorder more severe than that currently reflected by the
evidence. Therefore, no further assistance to the veteran
is necessary under 38 U.S.C.A. § 5107(a) (West 1991).
The percentage ratings assigned by the rating schedule
represent, as far as can practicably be determined, the
average impairment in earning capacity resulting from such a
disability, assessed with respect to its detrimental impact
on the veteran's ordinary daily activities, as well as
employment. 38 C.F.R. §§ 4.1, 4.10. More specifically, the
disability in issue is evaluated under the Schedule for
Rating Disabilities, 38 C.F.R., Part 4, with reference to
Diagnostic Code 7709, in an effort to accurately compensate
the veteran for all disability arising from his
service-connected disorder.
According to Diagnostic Code 7715, the veteran's
service-connected disorder, non-Hodgkins lymphoma, is to be
rated as Hodgkin's disease, pursuant to Diagnostic Code
7709. Under this Code, a 60 percent disability rating may
be assigned if the evidence demonstrates general muscular
weakness with loss of weight and chronic anemia or secondary
pressure symptoms such as marked dyspnea, edema with pains
and weakness of extremity, or other evidence of severe
impairment of general health. A 30 percent evaluation is
provided where the evidence shows an occasional low grade
fever, mild anemia, fatigability or pruritis. Otherwise,
the rating is to be assessed on those residuals existing
subsequent to the resolution of the acute malignant
episode(s). If the requirements for a 30 percent rating are
not present, a no-percent evaluation will be assigned.
38 C.F.R. § 4.31.
Service connection was granted for non-Hodgkin's lymphoma by
rating action of April 16, 1991, following notification that
the disease had been diagnosed in September 1989 at a
private institution. A noncompensable rating was assigned
on the basis of private medical reports showing that the
veteran was asymptomatic, and no treatment was initiated,
although careful follow-up was recommended. Follow-up
reports showed no evidence of recurrent disease.
The veteran is appealing the noncompensable determination,
arguing that he has a serious disorder, albeit
nonsymptomatic, which has a very poor prognosis, and that a
compensable rating should be assigned in recognition of the
expected recurrence of the active disease process, as well
as the poor prospects for a full recovery. He also contends
that he experiences fatigue when he does not adhere to his
fitness routine, contending that this could be a symptom of
his service-connected disorder.
The most recent private follow-up evaluation in evidence,
dated in February 1991, reveals that the veteran presented
with no complaints, noting that his energy level was normal,
appetite good, and that there were no episodes of fevers,
chills, night sweats or weight loss. Physical examination
was normal, with the exception of a 1 cm. left interior
axillary lymph node, and bilateral shotty inguinal
adenopathy. The diagnostic impression was that there was no
evidence of disease, and that the veteran remained
asymptomatic.
Similarily, VA outpatient follow-up examinations, conducted
several months subsequent to the above evaluation, found
normal white blood count and liver function studies.
Although the prior lymph node findings were repeated, chest
and pelvis CT scans were otherwise normal, and it was
clearly indicated that there was no evidence of a recurrence
of the malignacy. Moreover, in reference to rating criteria
of Diagnostic Code 7709, all of the follow-up outpatient
treatment reports are uniformily devoid of any indication of
complaints of fatigue, anemia, or pruritis, or weight loss.
All current outpatient follow-up clinical reports
consistently indicate that the veteran is asymptomatic, with
no evidence of an active disease process. There have been
no findings of low grade fever, weight loss, anemia, or
pruritis, and the veteran has not reported fatigue in a
clinical setting. In fact, the veteran is consistently
noted to look well and to have no complaints.
Therefore, because the clinical evidence of record fails to
demonstrate any of the criteria listed in Diagnostic Code
7709, and because the disease has been clinically assessed
as inactive, a compensable evaluation is not warranted.
38 U.S.C.A.§ 1155, 5107 (West 1991); 38 C.F.R. § 4.10, 4.31,
Part 4, Code 7715, 7709.
VA laws and regulations used in determining disability
evaluations do not provide compensation for grave diagnoses
or poor prognoses. Evaluations are based on current and
actual disability. Therefore, although we recognize the
seriousness of the veteran's service-connected disorder, the
applicable laws and regulations do not provide compensation
for either potential or predicted clinical outcome.
However, should the veteran's condition deteriorate, he may
reopen his claim with clinical evidence demonstrating
pertinent symptomatology.
We have considered the provisions of 38 C.F.R. § 3.321(b)(1)
regarding the assignment of extraschedular evaluations, but
find this provision to be inapplicable. The veteran's
disability picture is not exceptional or unusual, with such
related factors as marked interference with employment or
frequent periods of hospitalization, as to render
impractical the application of the regular schedular
standards.
ORDER
Entitlement to a compensable evaluation for non-Hodgkin's
lymphoma is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
C. P. RUSSELL
JACK W. BLASINGAME
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
(Continued on next page)
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.